California Criminal Jury Instructions (CALCRIM) (2017)

853a. Evidence of Uncharged Abuse of Elder or Dependent Person

Download PDF
853A.Evidence of Uncharged Abuse of Elder or Dependent
Person
The People presented evidence that the defendant committed abuse of
(an elder/a dependent person) that was not charged in this case[,
specifically: <insert other abuse alleged>.] Abuse of (an
elder/a dependent person) means (physical abuse[,] [or] sexual abuse[,]/
[or] neglect[,]/ [or] financial abuse[,]/ [or] abandonment[,]/ [or]
isolation[,]/ [or] abduction[,]/[or] the act by a care custodian of not
providing goods or services that are necessary to avoid physical harm or
mental suffering[,]/ [or] [other] treatment that results in physical harm
or pain or mental suffering).
[An elder is a person residing in California who is age 65 or older.]
[A dependent person is a person who has physical or mental
impairments that substantially restrict his or her ability to carry out
normal activities or to protect his or her rights. This definition includes,
but is not limited to, those who have developmental disabilities or whose
physical or mental abilities have significantly diminished because of
age.]
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
uncharged abuse of (an elder/a dependent person). Proof by a
preponderance of the evidence is a different burden of proof from proof
beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is
true.
If the People have not met this burden of proof, you must disregard this
evidence entirely.
If you decide that the defendant committed the uncharged abuse of (an
elder/a dependent person), you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to
commit abuse of (an elder/a dependent person), and based on that
decision, also conclude that the defendant was likely to commit [and did
commit] <insert charged offense[s] involving abuse of elder
or dependent person>, as charged here. If you conclude that the
defendant committed the uncharged abuse of (an elder/a dependent
person), that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of <insert charged offense[s] involving abuse of elder
or dependent person>. The People must still prove (the/each) (charge/
[and] allegation) beyond a reasonable doubt.
[Do not consider this evidence for any other purpose [except for the
570
0058
limited purpose of <insert other permitted purpose, e.g.,
determining the defendant’s credibility>].]
New January 2006; Revised April 2008, February 2014, March 2017
BENCH NOTES
Instructional Duty
The court must give this instruction on request when evidence of other abuse of an
elder or dependent person has been introduced. (See People v. Falsetta (1999) 21
Cal.4th 903, 924 [89 Cal.Rptr.2d 847, 986 P.2d 182] [error to refuse limiting
instruction on request]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1317–1318
[97 Cal.Rptr.2d 727]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067 [210
Cal.Rptr. 880] [general limiting instructions should be given when evidence of past
offenses would be highly prejudicial without them].)
If the court has admitted evidence that the defendant was convicted of a felony or
committed a misdemeanor for the purpose of impeachment in addition to evidence
admitted under Evidence Code section 1109, then the court must specify for the
jury what evidence it may consider under section 1109. (People v. Rollo (1977) 20
Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771] [discussing section
1101(b); superseded in part on other grounds as recognized in People v. Olmedo
(1985) 167 Cal.App.3d 1085, 1096 [213 Cal.Rptr. 742]].) In the first sentence,
insert a description of the uncharged offense allegedly shown by the section 1109
evidence. If the court has not admitted any felony convictions or misdemeanor
conduct for impeachment, then, in the first sentence, the court is not required to
insert a description of the conduct alleged.
Depending on the evidence, give on request the bracketed definition of an elder or
dependent person. (See Welf. & Inst. Code, §§ 15610.23 [dependent adult],
15610.27 [elder].) Other terms may be defined on request depending on the
evidence. See the Authority section below for references to selected definitions
from the Elder Abuse and Dependent Adult Civil Protection Act. (See Welf. & Inst.
Code, § 15600 et seq.)
In the paragraph that begins with “If you decide that the defendant committed,” the
committee has placed the phrase “and did commit” in brackets. One appellate court
has criticized instructing the jury that it may draw an inference about disposition.
(People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823].)
The court should review the Commentary section below and give the bracketed
phrase at its discretion.
Give the bracketed sentence that begins with “Do not consider” on request.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent, or
Common Plan, etc.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 853A
571
0059
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
AUTHORITY
• Instructional Requirement. Evid. Code, § 1109(a)(2).
Abandonment Defined. Welf. & Inst. Code, § 15610.05.
• Abduction Defined. Welf. & Inst. Code, § 15610.06.
• Abuse of Elder or Dependent Person Defined. Evid. Code, § 1109(d)(1).
• Care Custodian Defined. Welf. & Inst. Code, § 15610.17.
• Dependent Person Defined. Evid. Code, § 177.
• Elder Defined. Welf. & Inst. Code, § 15610.27.
• Financial Abuse Defined. Welf. & Inst. Code, § 15610.30.
• Goods and Services Defined. Welf. & Inst. Code, § 15610.35.
• Isolation Defined. Welf. & Inst. Code, § 15610.43.
• Mental Suffering Defined. Welf. & Inst. Code, § 15610.53.
• Neglect Defined. Welf. & Inst. Code, § 15610.57.
• Physical Abuse Defined. Welf. & Inst. Code, § 15610.63.
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter
(1997) 15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James
(2000) 81 Cal.App.4th 1343, 1359 [96 Cal.Rptr.2d 823].
• Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a
Reasonable Doubt. People v. Younger (2000) 84 Cal.App.4th 1360, 1382 [101
Cal.Rptr.2d 624]; People v. James, supra, 81 Cal.App.4th at pp. 1357–1358, fn.
8 [96 Cal.Rptr.2d 823] [in context of prior domestic violence offenses]; see
People v. Hill (2001) 86 Cal.App.4th 273, 277–278 [103 Cal.Rptr.2d 127] [in
context of prior sexual offenses].
• Charged Sex Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 206 Cal.Rptr.3d 835, 2 Cal.App.5th 1178,
1186–1186]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144 Cal.Rptr.3d
401, 281 P.3d 390].
• No Sua Sponte Duty To Give Similar Instruction. People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163].
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
CALCRIM No. 853A ASSAULTIVE AND BATTERY CRIMES
572
0060
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[5] (Matthew Bender).
COMMENTARY
The paragraph that begins with “If you decide that the defendant committed” tells
the jury that they may draw an inference of disposition. (See People v. Hill, supra,
86 Cal.App.4th at pp. 275–279; People v. Brown (2000) 77 Cal.App.4th 1324,
1334–1335 [92 Cal.Rptr.2d 433].) One appellate court, however, suggests using
more general terms to instruct the jury how they may use evidence of other
domestic violence offenses, “leaving particular inferences for the argument of
counsel and the jury’s common sense.” (People v. James, supra, 81 Cal.App.4th at
p. 1357, fn. 8 [96 Cal.Rptr.2d 823] [includes suggested instruction].) If the trial
court adopts this approach, the paragraph that begins with “If you decide that the
defendant committed the uncharged abuse of (an elder/a dependent person)” may
be replaced with the following:
If you decide that the defendant committed the uncharged abuse of (an elder/a
dependent person), you may consider that evidence and weigh it together with
all the other evidence received during the trial to help you determine whether
the defendant committed <insert charged offense involving
abuse of elder or dependent person>. Remember, however, that evidence of
uncharged abuse of (an elder/a dependent person) is not sufficient alone to find
the defendant guilty of <insert charged offense involving abuse
of elder or dependent person>. The People must still prove (the/each) (charge/
[and] allegation) of <insert charged offense involving abuse of
elder or dependent person> beyond a reasonable doubt.
RELATED ISSUES
Exceptions
Evidence of abuse of an elder or dependent person occurring more than 10 years
before the charged offense is inadmissible under Evidence Code section 1109,
unless the court determines that the admission of this evidence is in the interest of
justice. (Evid. Code, § 1109(e).) Evidence of the findings and determinations of
administrative agencies regulating health facilities is also inadmissible under section
1109. (Evid. Code, § 1109(f).)
See the Related Issues sections of CALCRIM No. 375, Evidence of Uncharged
Offense to Prove Identity, Intent, Common Plan, etc., CALCRIM No. 852, Evidence
of Uncharged Domestic Violence, and CALCRIM No. 1191, Evidence of
Uncharged Sex Offense.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 853A
573
0061